Singh (Migration)

[2021] AATA 5667

Singh (Migration) [2021] AATA 5667 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harbhajan Singh

CASE NUMBER:  1834014

HOME AFFAIRS REFERENCE(S):          BCC2017/3171383

MEMBER:Cathrine Burnett-Wake

DATE:9 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 9 April 2021 at 12:28pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Chef – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 October 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 September 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Chef (ANZSCO 351311) by Babbu Australia Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.223(2) of Schedule 2 to the Regulations because there was no approved nomination.

6. On 16 February 2021, the Tribunal wrote to the applicant by letter advising that it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 23 March 2021.

7. On 2 March 2021, the Tribunal again wrote to the applicant by letter inviting them to comment on or respond to information. The particulars of the information being, on 19 October 2020, the Tribunal determined that it did not have jurisdiction to hear the nominator’s application. This means that the nominator’s application for the nominated position has not been approved which was relevant as it was a requirement for the grant of the visa that the position specified in the visa application is subject to an approved nomination.

8. The Tribunal’s letter outlined that any comments or response should be received by 16 March 2021 and that it the applicant cannot provide written comments or response by 16 March 2021, they may ask for an extension of time in which to provide the comments or response which must be received by 16 March 2021. The letter also outlined that if the Tribunal does not receive comments or response within the period allowed or as extended, it may decide on the review without taking any further action to obtain their views on the information. Finally, the letter also outlined that if no response is received, they will also lose any entitlement they might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

9. No comments or response were received from the applicant in respect to the Tribunal’s letter of 16 February 2021.

10. On 17 March 2021, the Tribunal wrote to the applicant outlining that the scheduled hearing had been cancelled as no response was received to the Tribunal’s letter of 16 February and as a consequence, they had lost their right to a hearing.

11. The Department file contains a certificate in accordance with s375A. The Tribunal is of the view this certificate is valid. However, notwithstanding the validity of the certificate, the information protected by the certificate is not relevant to the determination of the Tribunal’s decision as such the information has not been taken into consideration.

12. The applicant was represented in relation to the review by his registered migration agent.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether there is an approved nomination.

    Nomination of a position

15. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

16. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

17. Based on information before the Tribunal, it finds that there is no approved nomination of an occupation relating to the applicant.

18. Therefore, cl 186.223 is not met.

19. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Cathrine Burnett-Wake
    Member

    
    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.